Health and Social Care Bill

26 May 2011

Following on from my paper “Fatally Flawed” I thought it might be of interest to readers to upload three papers prepared by Peter Roderick, a public interest lawyer. The first, NHS duty, summary, is a summary of his legal analysis, the second, NHS duty, statutory provisions, covers the present legal situation covering the duty of the state to provide a national health service in England and third paper, NHS duty abolition legal analysis, is a legal analysis of the abolition of this duty.

It seems to me that there has not been enough awareness generally of the fundamental nature of the changes that are proposed in this area of the Health and Social Care Bill. In the past those inside the NHS have been shielded, by the Government generally, and the Secretary of State for Health and junior Ministers specifically, from much of the public criticism of the inevitably rationed nature of health care. Also the general democratic debate in Parliament and elsewhere about the rationing of health care in the context of the answerability of elected politicians has provided a very necessary shield for those inside the NHS in their relationship to their patients. It is very important, before this existing framework of accountability through the Secretary of State for Health is abolished, that people working in the NHS ask themselves whether they feel confident in defending and taking these rationing choices without the previous protection afforded by the Government, the Secretary of State and the Westminster Parliament. We are, in effect, going to see a substantial increase in powers to unelected quangos, many of which already exist, but more importantly we will see the erosion of the existing linked-decision making between these quangos at a time when one of the core criticisms of the NHS is that it lacks a single, simple command structure. It seems perverse to be abolishing rather than streamlining the one that exists and which has been able, at the very least, to maintain public confidence as demonstrated by the extraordinary levels of public support for the NHS. As I argued in ‘Fatally Flawed’ there is a great need for rational decentralisation of decision making and far greater coordination between hospital care, GP care and social care whether at home, sheltered accommodation or hospices. It is very apparent to me that in the present pause there are many people in the NHS who are unaware of the far-reaching nature of the proposed withdrawal of powers of the Secretary of State and the dramatic changes in the coherence and command structures of the NHS.

Peter Roderick, in relation to what he has written, can be contacted via his email:

Also see here my correspondence with the Department of Health (DoHFOIreply) and Information Commissioner (InformationCommissioner). I am trying to obtain more information as to the nature and content of the legal advice that was given prior to the publication of the Health and Social Care Bill about the implications of “any willing provider” or the term that has recently replaced it, “any qualified provider” in relation to EU competition law and EU procurement law. It is very hard to understand why, so far, the ‘pause’ and listening process that is meant to accompany it, does not appear to have covered sufficiently these very important areas which are likely – were the Bill ever to become law – to have profound consequences into the future. It is an extraordinary paradox that a Conservative Government that has rightly raised concerns about the extent of detailed EU interference in the day-to-day decision making within the UK should be blithly accepting a massive increase in EU interference without any publication of the legal advice which the Government has already had, both the previous government in 2007 which led them to withdraw their support for “any willing provider” and to substitute it with the overarching commitment that the NHS was the main provider of health care. The only purpose of that change could have been to have made it harder for the EU to encroach onto the NHS. It is that sort of provision which, for example, has protected the French railway system from EU encroachment in areas of competition and procurement policy. As far as the legal advice to the present coalition government we know they have been given legal advice but they claim that this is part of the generality of advice over the Health and Social Care Bill and that it cannot be separated out. They are trying to block any disclosure by offering a further departmental review, but the only way this information can come out in time for wider discussion.

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This site features Lord Owen's thinking on current issues - it is not archival. Lord Owen's papers covering his time as a Minister and Foreign Secretary in the UK Government, in the Social Democratic Party and as EU Co-Chair of the International Conference on the Former Yugoslavia are available from the University of Liverpool Library's Special Collections and Archives. A catalogue is here: Lord Owen's Archive.